' MUHAMMAD FARRUKH IRFAN KHAN, J.---Petitioners through this revision petition under section 115 of the C.P.C. Assail the judgment and decree dated 26-11-2004 passed by the learned Addl. District Judge, Sheikhupura whereby he accepted the appeal filed by the respondents against the judgment and decree of the learned Civil Judge, Sheikhupura dated 25-2-2004 and dismissed the suit of the petitioners for declaration and partition.
2. Briefly the facts of the case are that the petitioners /plaintiffs filed a suit for declaration along with partition alleging therein that the petitioners/plaintiffs along with Nasir Jang predecessor in interest of respondents/defendants Nos.1 to 4 and defendant No,5 (Zahoor Ahmad) are co-owners in possession of land measuring 4K-9M comprising in Khewit No,369, Khatuni No,678, Sq.No,216, Killa No,5 situated at Manawala Karyal Singh Tehsil and District Sheikhupura. Nasir Jang predecessor in interest of respondents/defendants Nos.1 to 4 who was actually owner of 1/5th share out of total land was cultivating the entire land as sharer and used to pay share of produce to the petitioners/plaintiffs and defendant No,5. Nasir Jang predecessor in interest of respondents/defendants Nos.1 to 4 collusively and with mala fide intention got transferred the aforementioned disputed property in favour of respondents/defendants Nos.1 and 2 through gift deed dated 13-12-1982 and Mutation No,2710 dated 10-1-1983 was also got sanctioned in favour of respondents/defendants Nos.1 and 2. It was stated in the plaint that the disputed property was joint and Nasir Jang was the owner of only 1/5th share out of total land as such he could not transfer the property more than his share. A decree for declaration was prayed to the effect that the impugned gift deed dated 13-12-1982 regarding disputed property in favour of respondents/defendants Nos.1 and 2 and consequent Mutation No,2710 dated 10-1-1983 are illegal, against facts, void, collusive, based on mala fide, having no effect on the rights of the petitioners/plaintiffs and liable to be set aside. It was further prayed that as the property in dispute was jointly owned by the parties as such decree for partition of the said property was also sought. The respondents/defendants Nos.1 to 4 contested the suit by filing written statement. Out of the divergent pleadings of the parties, the learned trial court framed as many as twelve issues including relief. Both the parties produced evidence in support of their respective claims. The learned trial court vide its judgment and decree dated 25-2-2004 decreed the suit of the plaintiffs/petitioners. Being aggrieved the respondents/defendants filed appeal which was accepted by the learned appellate court through the impugned judgment and decree dated 26-11-2004. Hence, this civil revision.
3. Learned counsel for the petitioners contends that the judgment and decree of the learned appellate court are based on surmises and conjectures; that the learned appellate court erred in law while holding that the suit of the petitioners is barred by time; that the learned appellant court did not cite any particular provision of law which in its view governed the suit; that in the suit of the petitioners Article 120 of the Schedule of the Limitation Act, 1908 was attracted which provides limitation period of six years from the date on which cause of action accrued; that the petitioners categorically stated in their plaint that cause of action finally arose two and half months prior to the filing of civil suit as such the suit of the petitioners was well in time; that there is nothing on record to suggest that the petitioners had knowledge of the impugned gift deed and mutation prior to 1998-99; that even otherwise it is well settled proposition of law that partition of joint property is a continuing right, therefore, question of limitation is irrelevant; that the learned appellate court while computing the period of limitation has referred to the statements of P.W.6 and P.W.5 who stated that constructions were raised in the year 1994 and 1998. According to the learned counsel none of the P.Ws. In their statements deposed that the impugned gift deed and mutation was in their knowledge in the year 1994 or 1998 as such conclusion drawn by the learned appellate court that impugned gift deed/mutation was in the knowledge of the petitioners in the year 1994/98 is erroneous; that the learned appellate court overlooked material aspect of the case while passing impugned judgment and decree that the property in dispute was not partitioned and under the law every co-sharer is owner of each and every inch of joint property; that the impugned gift deed is illegal and void as the Nasir Jang was only owner of 1/5th share out of total property as such he could not gift any portion of it to his son without prior consent of the other co- owners; that possession was not handed over to the donee as such impugned gift deed is not valid; that the learned appellate court exceeded its jurisdiction while holding that a decree for partition can only be passed if property of entire Khata is prayed to be partitioned. According to the learned counsel there is no dispute between the parties regarding other parts of the joint property which they amicably settled outside the court; that the disputed property was the most valuable part of Khata therefore, the parties could not arrive at a settlement to the extent of property subject matter of the suit and there is no legal bar in seeking partition of only that part of joint khata; that the judgment and decree of the learned trial court is well reasoned, whereas, impugned judgment and decree of the learned appellate court is result of mis-reading and non-reading of the evidence as such not maintainable.
4. Conversely, learned counsel for the respondents Nos.1 to 4 submits that the learned appellate court passed the impugned judgment and decree after due appreciation of evidence available on the record; that the suit of the petitioner was badly barred by time; that P.W.1 and P.W.2 during their cross-examination admitted that parties jointly owned 130K-12M land out of which joint owners including petitioners have been selling different pieces of land as such the learned appellate court was fully justified in holding that in such circumstances only suit for partition of entire Khata is maintainable; that it has also been established from the evidence of the P.Ws. That the respondents are in possession of disputed property and raised constructions over there as such they have every right to retain the possession of said property; that through the impugned judgment and decree substantial justice has been done between the parties, therefore, revisional jurisdiction of this Court cannot be invoked in the circumstances.
5. I have heard the arguments advanced by the learned counsel for the parties at length and gone through the record.
6. The plaintiffs/petitioners had filed suit for declaration and partition of the disputed joint property.
In the prayer of declaration they had sought relief of declaring the Gift Deed dated 13-12-1982 (Exh.P.12) and Mutation No,2710, dated 10-1-1983 (Exh.P.13) made in favour of the respondents/defendants by their predecessor-in-interest/Nasir Jang to be illegal, without lawful authority and ineffective on the rights of the plaintiffs/petitioners being the co-owners in the joint 'khata'. In the second prayer the plaintiffs/petitioners had sought partition of the property in dispute and as a consequential relief possession of the same according to their shares, along with 3/5 share from the rental income accruing from the shops constructed over the land in dispute. In this way, the plaintiffs/petitioners had combined two causes of action in one suit. The law provides different and separate period of limitation with regard to each of the relief sought for in the said suit. In the instant case, admittedly the parties are co-owners in the joint 'khata' and no partition as yet has taken place. The property in dispute is also part of the joint 'khata' and is yet to be partitioned and this fact is even not disputed by the defendants/respondents. It is well settled law that partition of joint property is a continuing right enforcement of which is not bound by any A period of limitation. Reliance in this regard is placed on the cases of Sarakhi Abdul Rahiman Trangan and another v. Muhaidin Pathaummal Bivi and another (AIR 1917 Madras 244), Habib-ur- Rehman v. Abdul Rahman and 3 others (1987 CLC 195), Hamayun Kabeer v. Oaiser Nazir (2006 M LD 1496) and Moinuddin Paracha v. Sirajuddin Paracha (1994 CLC 247). Though the respondents are in possession of the disputed property but mere holding of possession does not disentitle other co- owners from claiming partition of the property and in such cases limitation is not relevant and suit for partition could be filed at any time. Reliance in this regard is placed on the case of Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462). In the circumstances, I am of the considered view that the suit qua the relief of partition of the property in dispute was not barred by C limitation and the learned Appellate Court had wrongly held it so in the impugned judgment and decree.
7. So far as the limitation regarding the impugned gift deed and mutation is concerned, it is an admitted position that the predecessor-ininterest of the respondents was co-owner in the joint 'khata' and he claimed to have gifted the land in dispute to his sons/respondents from his share in the joint 'khata'. Admittedly, both the parties had also been selling out land from joint 'khata' and had executed various sale deeds, vide Exh.D-13 to D-25. It is settled law that a co-sharer is entitled to alienate or transfer his share in the khata and deliver possession of property in his occupation/control. The vendee steps into his shoes as a co-sharer and the property so purchased shall of course be subject to partition. No doubt there is no bar against transfer of land by way of gift by a co-owner to the extent of his share but in the present case the donor/Nasir Jang was attorney of other co-owners and without prior approval of the principal he could not make any gift in favour of his sons/respondents Nos.1 to 4. In this regard the learned counsel for the petitioner has rightly placed reliance on the cases of Fida Muhammad v. Muhammad Khan (PLD 1985 SC 341), Faqir Muhammad v. Pir Muhammad (1997 SCM R 1811), Muhammad Yasin v. Dost Muhammad (PLD 2002 SC 71), Jamil Akhtar v. Las Baba (PLD 2003 SC 494), Muhammad Ashraf v. Muhammad Malik (PLD 2008 SC 389), Muhammad Yousuf v. Lqbal Bibi (2005 CLC 1839) and Maqsood Ahmad v.
Salman Ali (PLD 2003 SC 31). The property in dispute being part of joint 'khata' as per law the respondents had obtained only ownership rights in the joint property and till the partition of the joint 'khata' they could not claim exclusive possession. Reliance in this regard is placed on the case of Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCM R 1463). In the circumstances, the main relief being the partition of the suit property and the relief qua gift deed being in relation thereto the suit could not be dismissed on the ground of limitation.
8. Admittedly, still the parties jointly own land measuring 130 Kanals but the petitioners filed suit for partition of land comprising 04K-09M of the said joint khata and that too without the consent of other share holders, therefore, learned lower appellate court has rightly held that the suit of the petitioners is not maintainable in this form. In this regard I am fortified by the case reported as Noor Muhammad v. Allah Ditta (PLD 2009 SC 198) wherein it has been laid down as under:-- "Moreover, it is well settled that co-owner in a joint property is not entitled without assent or acquiescence of the other co-sharers to exclude portion of joint property or to select a particular portion for the purpose of partition. He is required to seek partition of the landed property as a whole."
' However, during the course of arguments the learned counsel for the petitioner has argued that if the plaint is read as a whole it was seeking partition of the whole khata. Relying on the case of Samar Gul v. Central Government (PLD 1986 SC 35) He further argued that pleadings of mufassil lawyers should be seen with condoning eyes. The learned counsel in this regard has placed reliance on the cases of Manmatha Nath v. Muhammad Mokhlesur (PLD 1969 SC 565), Sajawal v.
Muhammad Din (2000 CLC 267) and Devasahayam v. Savithramma (2005) 7 SCC 653). He also argued that even the court is empowered to grant such IH relief as the justice of the case may demand. On this point, this Court finds itself in agreement with the learned counsel. In view of the fact that both the parties are admittedly joint owners in the property and the joint 'khata' is yet to be partitioned, the learned appellate Court has wrongly dismissed the suit and the parties were not provided opportunity to resolve their controversy before the Court. In the peculiar circumstances of the case this Court finds it in the interest of justice to remand this case to the learned trial Court.
The parties will be afforded opportunity to lead their respective evidence. The petitioner/plaintiff shall apply to the Court for permission to suitably amend the plaint so as to seek partition of the entire joint khata. Such amendments if sought would be allowed by the trial Court and all necessary parties shall be allowed to be impleaded. The respondents and all such newly added parties will of course have a right to file written statements and to plead their case. The suit shall be proceeded with and decided in accordance with law within six months. No party should be allowed to alter or change the nature of disputed property and status quo qua the property shall be maintained in all respect.
9. Having concluded the matter in line with the law settled by the Hon'ble apex Court, it may be observed that in view of the enormous hike in the price of real estate the issue relating to the rights of co-owners is becoming ever more contentious. The co-owner in occupation of an undivided property is in a dominant position and can, in certain circumstances, wreak havoc with the rights of the other co-sharer(s) especially when the nature of the subject matter property is likely to be altered by the co-owner in possession or his vendees. At times an agricultural land can be transformed into a housing scheme or constructed property making it almost impossible for the other co-sharers to seek partition thereof. In certain circumstances, it can surface on the record that the co-sharer in possession has not alienated beyond his share but the property of the other co-owners stands utilized for roads and other amenities, thereby leaving them practically with nothing. It is a matter which requires attention of the legislative authorities, who may consider the desirability of framing suitable law(s) on the subject.
10. With the above observations, this revision petition is disposed of.